Thursday, September 14, 2006

WIPO Press release on SCCR recommendation for DipConf

NEGOTIATIONS ON THE PROTECTION OF BROADCASTING ORGANIZATIONS ENTERS FINAL PHASE

A key committee of the World Intellectual Property Organization (WIPO) agreed today to convene a diplomatic conference from July 11 to August 1, 2007 to update the rights of broadcasting organizations. This recommendation is to be endorsed by the WIPO General Assembly when it meets later this month. The objective of this diplomatic conference, the last phase of treaty negotiations, is to conclude a treaty on the protection of broadcasting organizations, including cablecasting organizations.

A resolution adopted by the WIPO General Assembly in October 2005 scheduled two additional meetings of the Standing Committee on Copyright and Related Rights (SCCR) "to agree and finalize a Basic Proposal for a treaty on the protection of the rights of broadcasting organizations in order to enable the 2006 WIPO General Assembly to recommend the convening of a Diplomatic Conference in December 2006 or at an appropriate date in 2007."

The SCCR agreed that a draft basic proposal presented at this week’s meeting would constitute the basis for negotiations at the diplomatic conference with the understanding that member states may submit proposals at that conference.

WIPO Director General, Dr. Kamil Idris, welcomed the positive outcome of the meeting as well as the political will demonstrated by member states to conclude the negotiations. He said "The positive spirit that has characterized these discussions will further strengthen consensus on these issues in the months leading up to the diplomatic conference." Dr. Idris said "The success of this process hinges on the continued inclusiveness of the debate which seeks to reach an agreement that is balanced and serves the common interests of all stakeholders."

The Committee also agreed, following endorsement of their recommendation by the WIPO General Assembly, to convene a one day preparatory committee in January 2007 to prepare the necessary modalities of the diplomatic conference. The preparatory committee considers the draft rules of procedure to be presented for adoption to the diplomatic conference, the lists of states, as well as intergovernmental and non-governmental organizations to be invited to participate in the conference as well as other organizational matters. A special two-day meeting will be held in conjunction with the preparatory meeting to further clarify outstanding issues.

Delegates also agreed that WIPO would organize, at the request of member states, consultations and information meetings on matters relating to the diplomatic conference. Such meetings would be hosted by the inviting member state.

Discussions at this week’s session (15th session) of the SCCR were confined to the protection of traditional broadcasting organizations and cablecasting. This followed a decision by the 14th session of the SCCR from 1 to 5 May, 2006, to examine questions of webcasting and simulcasting on a separate track following the forthcoming session of the WIPO Assemblies meetings from 25 September to 3 October, 2006.

Updating the IP rights of broadcasters, currently provided by the 1961 Rome Convention on the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, began at WIPO in 1997. A growing signal piracy problem in many parts of the world, including piracy of digitized pre-broadcast signals, has made this need more acute.

For further information please contact the Media Relations and Public Affairs Section at:

Wednesday, September 13, 2006

Arm twisting time

by James Packard Love

We are now at 4pm on the last of a three day meeting. Jukka Liedes is insisting upon a three page document, "Draft conclusions of the SCCR," which was handed out before lunch. It calls for a May/July diplomatic conference in Geneva. He wants a preparatory committee to meet in December 2006, with uncertain duties, and the authority to prepare a new "basic proposal" by February 28, 2007, followed by regional consolations.

The treaty is supposed to "provide protection fro the signals of the broadcasting and cablecasting organizations without affecting or addressing the rights on content carried by the signal." But paradoxically, it calls for a minimum 20 year term of protection, and a set of exclusive rights, including fixation, retransmission and post-fixation "downstream" rights, as well as WCT type TPM language. Verbally, Jukkas has not given up on getting webcasting in the treaty, and many see it already in the current draft, in the various parts of Articles 5 and 9.

There will be new definitions, a new preamble, and a reordering of sections.

Lots of countries don't like his proposal. India is taking a hard line. But Jukka and the WIPO Secretariat staff is bound and determined to pound on delegates to go along.

After the solo performance of the chair of the committee yesterday with his promise of hugs and kisses and life long friendships at a Diplomatic conference this morning we heard the reaction from some delegates notably India and Brazil. It was not good for the Chair. They made it clear that there are still serious concerns and questioned the advisability of going for a Diplomatic conference (DC) (the final stage of Treaty making and the outcome pushed by the Chair) at this stage.

The last two days have been dominated by speculations about the series of bilateral discussions that have been taking place between the US, India, Brazil and the EU. While they have all had discussions with other countries, these parties are seen by many as the keys to whether an agreement for a Diplomatic Conference will be reached.

India introduced some reality into the situation and a strong rebuff to the idea that any differences could simply be resolved at a the DC. In an eloquent and detailed speech they pointed out that they still had major concerns that went to the heart of the treaty namely the inclusion of the references to webcasting ‘in its widest sense’ in the text and going beyond a signals based approach . Any further push for a Diplomatic Conference (DC) with first addressing this issue would likely lead to more acrimony than acceptance. They ended in the starkest terms, that if these 2 issues were not addressed and bought under some common understanding the ‘going up the garden path’ to a DC would likely end in fiasco..

Russia , Mexico and the Philipines then spoke ion favour of going for a DC.

Brazil in a carefully worded intervention gave an insight into what has been discussed in private. Said that they would support to a certain extent a treaty which focused on a more narrower basis focusing on a right of transmission which was supported by ‘some delegates’. The reference to transmission by any means included over computer networks ( seen as the webcasting references) at least as a defensive measure was imperative to some members. The extent to which even this references would turn the Treaty into one which covered webcasting/simulcasting was the ‘million dollar question’ that required further discussion/research.

Then their main concern- which was on procedure. They were not prepared to agree to a DC based on the Chairs suggestion of delegates providing him with broad drafting instructions to prepare the text to be discussed at the DC. They would want to see the text.

Iran and Indonesia joined in criticism of the procedure . Iran wanted space before and DC to have a clean text . Indonesia wanted an impact study before a DC.

Chile with a great metaphor also criticized the rush to trying to establish a date for the DC without having a clear text. “ you need to swim before buying a swimming pool

The was then a break when the talk was that there would be no DC and that India ‘s views were key. During that break the chair's draft of next steps was circulated which includes the controversial drafting steps and seeks to set a date for the DC.

The proposal for the afternoon is to go through this document point by point. Though the EU reserved the right to make a global, statement as they don’t think a point by point approach is the best way, as the issues are linked.

WIPO Struggles with openness

CPTech asked Jule Sigal from the US Library of Congress and Ann Chaitovitz to approach the chair to support the right of the public to speak.* The Library of Congress is opposed to having the public speak at this meeting. WIPO is not providing enough seats in the room, and unlike other meetings, there are no overflow rooms so some NGOs have not been allowed to follow the debate. One NGO was told to stop taking pictures of the proceedings.

Normally, NGOs can speak, and often their contributions address important substantive and strategic issues overlooked or not adequately explored during the interventions by governments, partly because governments are often constrained by diplomatic and political considerations. There is certainly plenty of time. The meetings have started late, and often adjourned early, and many countries are saying very little during the debates.

One interpretation of decision to stop the public from speaking is to control the perception that there is a consensus in favor of a new intellectual property right for broadcasting and cablecasting entities, in a model that will likely be extended to the Internet in different ways.

Given the poor track record of government negotiators in protecting the public interest in several recent negotiations on intellectual property rights, ** it is certainly rational to ask if government voices are sufficient in these debates.

----------------------*The USPTO and the LOC recently held a consultation on the treaty in Washington, DC that was limited to 40 participants, and did not permit the meeting to be recorded for broadcasting on the Internet.

**The TRIPS Agreement, the 1996 WCT and WPPT, the highly problematic Appendix the Berne, the highly problematic 2005 amendments to the TRIPS regarding exports of medicines manufactured under a compulsory license, the plethora of recent regional and bilateral IPR chapters in FTA and other trade agreements, and the most recent UPOV plant varieties treaty.

Tuesday, September 12, 2006

Summary of notes Day 2 "Moving toward a dip conf"

by Manon Ress

Summary of notes of Day 2 of the WIPO Broadcasting Treaty

The buzz is that it's moving fast toward a diplomatic conference.....

The morning session that was scheduled last night started at 10 and did not last long because the chair asked delegations to meet informally to resolve differences. The room was packed and for the first time WIPO did not provide extra chairs and there was no "room B" where one could at least listen to the proceedings.

The committee ended its discussion on rights and limitations and exceptions (and TPM). Korea, Singapore and other called for a diplomatic conference, South Africa made an excellent intervention asking questions about the broad scope and lack of clarity. Like Iran, the delegation stated that the proposed text be cleaned of ambiguous terms. South Africa supports the non exhaustive list of limitations and exceptions and want TPM provision deleted.

During lunchtime, the civil Society Coalition hosted a briefing in room B. Representatives from a coalition that signed a joint statement and representatives of organizations that signed onto a proposal for a signal protection only proposal expressed their concerns regarding the treaty.

Main points were there's no justification for the treaty, no evidence was given by demandeurs, the current rights-based approach of the treaty must be abandoned, intermediary liability is not resolved, and impact on innovation.

Sisule Musungu, noted that while people say that the treaty has been under discussion for "9 long years", the committee has in fact only met (at most) for 66 days...and that may not be enough "substantial discussions" for a treaty of such importance and that will last for maybe a century!

And the following afternoon session was a case in point. There were very few substantial interventions. Switzerland supports the scheduling of a diplomatic conference and wants limitations and exceptions as suggested by the US corresponding to the WPPT. The Dominican Republic supports flexible limitations and exceptions as proposed by Chile, brazil and Perou. They are not really opposed to TPM but warned that they should not be detrimental to the public interest.

At 5pm, the committee had a break and will meet again. The plan is (maybe) to hear the African group position on rights and limitations and exceptions and then to start the "assessment".

Back from breakNigeria on behalf of the African group expressed caution regarding access to knowledge and information and TPM. They support a study on the impact of such provisions. Morocco, Kenya, Benin and Egypt spoke briefly to support the convening of a diplomatic conference in 2007. They all emtnioned the long years of discussions.

Break at 6pm, we;ll be back at 7:45 to discuss how the process will move forward.

Dipconf seems likely at this point -- now for the US it's the cablecasting treaty

by James Packard Love

The US and the EU are showing some flexibility. The Africa group has called for a diplomatic conference. Many delegates seem inclined to move ahead to get this issue behind them. Too early to tell what type of rights will be included. The TPM measures are likely to only be those relating to the protection of the signal, and not to the content. Webcasting, netcasting and simulcasting is supposed to be out, but that is not really certain, and no one really knows what Article 9 does.

For the US, Canada and many other countries -- the short term outcome will effectively be a new treaty for cablecasting -- something not covered by the Rome Convention. No one has really thought about what this will mean, because the cable companies have not been showing up, and everyone was focusing on broadcasting and webcasting. But most people in the US and many other countries get TV primarily through cable, rather than over-the-air broadcasting.

Who are the beneficiaries of a "cablecasting" right? According to many delegates here, it will be the cable "channels," not the local cable company. Thus, it turns out that News Corp and Time Warner -- two companies attending this meeting, will be defined as "cablecasters" for their various cable channel offerings. So too for many other big aggregators of content for cable platforms around the world.

How will this play out when the cable company provides Internet access? I think this is not well thought out either.

South Africa's comments on L&E, scope, and TPMs

by Thiru Balasubramaniam

12 September 2006

At the 15th Session of the WIPO Standing Committe on Copyright and Related Rights (SCCR), the delegation of South Africa made perspicacious remarks on the scope of definition, simulcasting, limitations and exceptions and technological protection measures (TPMs).

South Africa concurred with the intervention of Indian delegate who articulated that the Committee clearly define the nature of the term "broadcast".

South Africa highlighted the intervention of the Islamic Republic of Iran which called for a cleansing of the terms "by any means" and "over computer networks" from the draft basic proposal.

With respect to limitations and exceptions, South Africa expressed support of Brazil's call for the "desirability of delineating exceptions and limitations". South Africa noted that the list of limitations and exceptions include a personal use exception and reminded the Committee of the need to preserve freedom of speech and enlightened values.

On the question of technological protection measures, South Africa called for a careful approach that did not curtail Member States' ability to regulate anti-competitive practices. Finally, South Africa called upon WIPO to conduct a study of best practices on the enforcement of TPMs.

*(Thanks to Gwen Hinze of the Electronic Frontier Foundation for input)

Monday, September 11, 2006

Quick notes from First Morning Session at SCCR 15

by Manon Ress

Monday Sept 11 10:30 WIPO SCCR 15th

The meeting started at 10:30 with a detailed introduction by Jukka Lieddes who was re-elected chair. He re-stated the tasks of the committee as decided by the General Assembly of 2005 when it was decided that there would 2 additional meetings scheduled "to accelerate, to agree and finalize" in order that the 2006 general Assembly can convene a Diplomatic conference in 2006 or 2007 at appropriate time etc.

The chair summarized what happened in May 2006 (SCCR14) and how the "clean text" had to be modified to include again all the alternatives. But simulcasting and webcasting were put on a different track and will not be discussed for this meeting.

Recalling other treaty negotiations (1996 and 2000), the chair stated that this treaty dealing with traditional broadcasting [and cablecasting] did not have real "deal breaker" and that it was possible to have acceptable working document to be discussed at a diplomatic conference in 2007 since December 2006 was not realistic.

He noted that there was "2 elements that needed to be tackled": one was that there was discussions of the treaty on the internet and other places and that there was a need for clarification. He explained that there was no completely new rights to be discussed here. The other elements that needed to be clarified was the right of retransmission by any means "over computer networks". He maintained that no, that did not mean that webcasting was included.

He designed a tentative working plan for the committee:

Afternoon session today: Rights and if enough time Limitaations and Exceptions and TPMs.

Informal discussion tomorrow morning (he encouraged delegations to meet informally) and then 2 plenaries, one in the afternoon and one at night. Then, if enough consensus, the secretariat and himself woul draft a new treaty proposal and present it on Wednesday.

After the coffee break, he explained the afternoon session again. There will be 2 "packages" one was the rights and the other limitations and exceptions and TPMs.The rights that will be discussed are:Article 9 - Right of Retransmission ( see doc SCCR/15/2 p41)Article 10 - Right of Communication to the Public p.43Article 11 - Right of Fixation p. 45moment when signal is in the air, the broacast in the air or in cable and someone has a device capturing and fixing the signal as well as the program. the life time of fixation can be short or long

Then we'll discuss the "then downstream rights":Article 12 - Right of Reproduction p47Article 13 - Right of Distribution p 51this one disappeared for a while because opposition but is back nowArticle 14 - Right of Transmission Following Fixation p.55Article 15 - Right of Making Available of Fixed Broadcasts p.57

a fixation in a database or server so public can access. it is another way to exploit what was the output of the orgArticle 16 - Protection in Relation to Signals Prior to Broadcasting p 61some call it deferred but it is another original transmission. no need to exagerat problem in naming. there's a fixation and then a delay. 11bis of Berne retransmission is only for simultaneous and by other.

No delegation asked for the floor so the morning session ended. back at 3pm.

Thursday, September 07, 2006

The WIPO casting treaty -- why decisions about the new technologies are important.

by James Packard Love

As the World Intellectual Property Organization (WIPO) Standing Committee on Copyright and Related Rights (SCCR) meets next week in Geneva, it will discuss a possible treaty on the protection of "traditional" broadcasting. This was defined in May 2006 as television and radio broadcasting, the two technologies covered by the 1961 Rome Convention, as well as any combination or representation of "images and sounds" delivered by cable television and satellite (technology platforms not covered by the Rome Convention). It is not supposed to deal with the Internet, although the WIPO SCCR Chairman Jukka Liedes (from Finland) has included in the Chairman's draft treaty a proposal by the European Commission to extend the treaty rights to broadcaster simulcasting on the Internet, something that clearly lies outside of the May agreement (a point discussed dramatically at the close of the May meeting).

If the SCCR reverses the position taken in May and permits simulcasting to be discussed next week, and if the EU pushes to include simulcasting in the treaty, the US government is expected to insist that the treaty be expanded also to "netcasting."

If simulcasting is excluded from the "traditional" broadcasting treaty, the demand for "webcasting" or "netcasting" rights will likely dissipate.

Why is the debate over the "new" technologies important? Here are some reasons:

1. There is a shift of viewing to new technology platforms. Today most people in the US use cable to satellite networks rather than older broadcast spectrum to receive television programming. The Internet appears to be the new platform for delivering all sorts of content, and over time, the "traditional" broadcasting technologies are expected to be less important.

2. The legal traditions are different. It is difficult to reduce protection levels once they are created. The 1961 Rome Convention has been signed by 83 countries. They are unlikely to repeal the broadcaster rights created by this treaty. But the Internet has never be subject to a Rome Convention type "casting" right. It is possible to avoid the mistake of the 1961 Rome Convention's broadcasting right, because we are starting from a clean slate.

3. The Internet is a global publishing platform. Historically, most countries had protected domestic broadcasting industries from foreign ownership. Whatever economic rights were given to broadcasters, they were effectively given to domestic broadcasters. To the extent that the broadcasters rights took economic benefits from copyright owners or consumers, they at least benefited domestic shareholders. Content delivered over the Internet will be quite different. A "webcasting" or "netcasting" right will often create an economic right for a foreign entity. Certainly some countries, including European broadcasters seeking Internet "simulcasting" rights, or US companies like Yahoo or News Corp (Myspace.Com) that aggregate access to works they don't own, think the right will create global economic rights in anything they "netcast," including works under copyright by others, in the public domain or freely distributed by authors (such as through creative commons type licenses).

4. The methods of use are very different. Traditional television or radio services distribute fewer works, under a highly centralized and more legally formal process than is the case for the Internet. Television broadcasters are better equipped to obtain permissions for broadcasts, are more likely to be able to pay for rights, and they are more likely to know where to obtain rights or copies of works. There is little tradition of listeners recording traditional broadcasts for purposes of rebroadcast the same works. Publishing on the Internet is far more prolific and heterogeneous. There are countless cases on the Internet where the publishing operates with very little or even zero expectations of revenues, and where it is difficult to establish the owners or origins of works. Works on the Internet are much more likely to be published in multiple web pages, reaching different communities. Works on the Internet are also more likely to be used in new ways, as content is remixed, mashed-up, and transformed in other ways. The less formal and more creative way of using and repurposing information on the Internet is critical for expanding the amount of and access to knowledge goods, as well as the character and nature of creative works.

The introduction of a new layer of transmission rights and obligations for new permissions and remuneration will have much harsher impacts on the Internet than it has on television or radio, in the countries where the Rome broadcaster right now applies. Indeed, this is such an important issue than many webcasting or netcasting entities and technology companies reject entirely the application of a Rome type webcasting or netcasting right, even in areas where they would benefit from it, because overall, the costs outweight the benefits. They recognize, like many US database companies recognize, the value in preserving the current freedoms to use and repurpose information is an important element in creating the value added services that creative communities and dynamic technology companies commercialize.

It is also the case the development of low cost digital television recording devices, and the explosion of new free image and video publishing services on the Internet, such as video.google.com, youtube.com, myspace.com, flicker, etc, have given rise to much greater use of video clips on blogs and other web pages. Many of these blogs take clips from television news or commentary (from broadcast or cable television) and add commentary and criticisms. This is changing the way that television news and commentary operates, and what political leaders now say on television, as the news organizations, commentators or political figures now face much more powerful feedback mechanisms. Such activities demonstrate why even the "traditional" broadcaster rights are problematic. They create rights that can be exercised by companies that merely transmit information, and allow restrictions on uses of content even when material is in the public domain or when the copyright owner (the Colbert Report, CNN, etc) are clearly not going to seek to restrict the use of the clips, either because they believe the use of clips on blogs stimulates interest in their programs, or they don't want to alienate their fans.

Given the evidence that Rome type transmission rights are not needed for traditional television (the US is one of more than 80 countries that never signed the Rome Convention, but still has a highly profitable broadcasting industry), and they are likely to be quite harmful for the Internet, policy makers should think differently about "parity." The rules for TV should be more like the rules on the Internet (or lack of rules), rather than making rules for the Internet more like rules for TV. If this isn't possible for countries that have already given broadcasters an IP "right" in their transmissions, it should not be repeated for the Internet. As the Internet has shown, freedom can be quite be quite valuable, because it permits people to act without permissions or remuneration in areas that are critical for creative communities.

Wednesday, September 06, 2006

USPTO/Copyright office Meeting: Summary of notes

Roundtable with 40 people (?) and many against the wall. See list in previous post.

1:00pmJule Sigal (Copyright Offce): let's set ground rules no recording but ok to report and we'll follow the 3 topics that were identified in email. The proponents, the opponents and comments on netcasting definition. First let's hear froms proponents or supporter of treaty. It is open to them first. To explain the reasons for the treaty and the positive and the negative. Ben Ivens leading representative of broadcasting organization will be first.

James Love (CPTech): Can we record the meeting?

Jule Sigal: No, it is not to be recorded but you can report on the meeting

Ben Ivins (NAB) : So, we have 3 objectives...why a treaty? last time update of our rights was in 1961 so currently have no protection on satellite, cable internet no protection on retransmission, and no technology protection measures so suffise to say in last 30 years a lot happened like piracy.Also we have example of IcraveTV in Canada, OK eventually there was law suit and remedies, but the broadcasters (in Buffalo) were powerless in respect to their signal/ piracy on tv program on internet. Various studies show loss of millions dollars in Canada, and there's a 130% increase of piracy.what kind of harm? Broadcasters see loss of control and loss of revenue for expropriation of their signal. The signal is sent to other markets and then comes from different time zones. ultimately you have a threat of deterioration of quality within broadcast community, whcih will spend less for programmming so over the year less programming and that will hurt access to knowledge.

Jule Sigal: any downside?

Ben Ivins : in this current draft, everything is back, like proposition of distribution rights that are off but...a couple more comments on the need, the need if balance with owners, we have the WPPT and the WCT, so we need to restore balance, we need a treaty and we need affirmative rights to fight piracy. Universal just has announced they will let free downloading if you watch ads. Who would have thought record industry would go with that business monel?

Jule Sigal: other proponents?

Erica Redler (NABA): The North America Broadcasting Association has been a proponent since the beginning, piracy and need for tpm are key. Affirmative right also important key to enforcementecon rights also we feel the investment is deserving to license etc like other owners. over the air the business model needs to maintain progr, so we're also looking for new sources of revenues. Also, Ben said fairness. We're left behind. these are the main reasons. re the draft there's so many things it depends which alternatives you're reading. in the draft, what we do not like are L and E that would nullify re transmission. we prefer the full rights along the line of european union. that is briefly

Jule: other proponent? Seth and then Fritz?

Seth G: talking in interest of webcasters, I've been their representative since early, and what we noted about the drafts is that it will be technollogically obsolete by the time it is done, so we're interested in internet webcasting and we're creating a brand new industry. A WIPO treaty lasts a long time without revision so it was important to identify internet not only as piracy but also for creation. Internet casting is very susceptible to piracy. It occurs but it is not publicized because technology. It is a loss for webcaster and rights owners. So from the start we're have promoted the principle of parity, we want same rights for internet webcasting. What we intend is internet webbcasting that is like broadcasting. It is not individual website, it is programming that is scheduled in US and other part of the world.On the downside: dima could accept something less than broadcasters. We want piracy protection but not overprotection we could accept signal piracy treaty only but we would accept also rights treaty with economic rights.

Terry Bjorklund American Federation of Television and Radio Artists We're proponent because of fairness, we continue to be concerned that artists do not have the same rights in the US. We keep this in mind and we support the treaty.

Friz Hattaway (MPAA)we support the treaty because broadcasters have interest in their signal, it is also covered by copyright but not covered 100% for example live event are not covered everywhere. Also from historial perspective, the Rome has been around for 30 years, most western European countries have Rome, and some have Berne plus. Despite the claim of opponents, it is not new nor radical. These concepts have been around for a very long time. It is for for the opponent to show with our experience with all the countries, and we do not see any threat but only benefit.For me the biggest downside: it will be technologically biased, it will exclude some technology like webcast and others and we want to protect other services. it cannot be a 20 century treaty, it has to be a 21 century treaty.

Neil Turkewitz (RIAA): We're not huge proponent of the treaty but we always view that broadcasters who invest could be protected from misappropriation. This treaty can close a gap, but we have great reservations because of the rights model instead of misappropriation model. We have general support for a treaty that address misappropriation. If in fact it is for signal piracy we think that not much has to be done to modified the draft as it is to make it. It does not mean we have to go to square one. We are agnostic about beneficiaries. So yes, list riaa as a proponent but a lot of work needs to be done.

Jeff Lawrence (Intel): As I listen to the need for a treaty, there was alot of focus on theft and that theft is bad, and we all agree that theft is bad, the question is do we need new intellectual property rights? We do not feel a case was made. There is a tremondous concerns for more IPR and if there is a treaty it should be limited to theft of service problems. we also have concerns about liability for the providers of the pipes and the makers of devices. We want innovation, we want home recording, and with thedraft, we have doubt. We have submitted a paper collectively and other signatories will want to present other points.

Jonathan Band for coalition of librariesIf there's need for more protection why not signed the Rome which has been there 45 years and why are we now looking 50 years terms while 20 in the Rome....Libraires need to look at the impact and have been looking at Limitations and exceptions. Ifwe have a signal protection treaty it is not a focus but if it is a right approach, limitations and exceptions become critical. Right now it is not clear not clear. It says parties "may provide" and it should be "shall provide"..the burden will be on us to fight hard all over again as we did for limitations and exception to copyright, for limitations and exceptions to broadcasters' rights. We'll have to fight for fair use and libraries exception again. Secondly, we want to hear from proponents as whether NAB supports the full range of L&E. And when we have hearings in the future, will be on the record if they support full limitations and exceptions.

Jim Burger: In the US, we do not copyright compilation but there's a good case against signal theft, it makes sense. But the mpa members hold the copyright and why would they not want to sue? and why is it they cannot? We never signed the Rome, and I agree with Neil T, we can do signal protection but not the right based. If we go the rights direction then we have to be specific in L&E for intermediaries etc, ...there's a lot of fear with new technologies but...one of my client is tivo, and they found that people actually watch more commercials now! We have to fight hard for a signal theft approach.

Gigi: 3 main points1) I still have not heard rational that cannot be solved by signal. It is not enough to need and want to get sweat of brow or sweat of the wallet in this case2) you know that in the US we do not have technology protection measures settled yet, and this is not making us law overseas but the other way around. 3) we are concerned about traditional consumer rights and limitations and exceptions. We would prefer signal theft approach but we want mandatory limitation and exceptions.

Michael Petricone Panasonic and Sonywhat is objective? misappropriation. Will this address it? Ben mentioned Icrave TV as an example but they went out of business!The US congress and not WIPO should assess need for this treaty.Our issue with broad rights and TPMs is that they do not stop at the wall of the home. That would nterfere with devices that allow consumers to use content in flexible ways. We need more analysis.We recomment a narrow signal protection approach.

Mike Godwyn Yale University Information Society Project abd law School. I've talking to techies and law professors and it does not make sense. The muddiness we see comes from the fact that it sometimes misappropriation and sometimes rights and these are different...We're fan of copyirght, for creators and to promote cultural goods... then, when we look at the treaty. When you have removed the content, what are you protecting? the pulse, the electrons?.... if we favor one approach at all, we'd favor signal theft. Talking to the tech community, they say programs are already protected. So what is left and need protection?if I were an evil broadcaster, but non of us are here, I would get one extra right, a transmission rights, that looks like IPR and that would not be good for the other owners.The clarity of purpose for this new treaty or for the accession to the Rome, is not here for law professors and their students nor for the techies!

Kevin Rupy (US Telecom)refers to the letter. Most important is home and personal networking. control would interfere. And liability needs to be addressedA final point, the definitions should include Internet Protocol TV. It is a functional equivalent of cablecast

Sarah Deutsch (Verizon):To protect against signal theft but has to consistent with US laws. Signal "piracy" makes it a right based approach. So we're talking about signal theft. It has to be consistent with a variety of us law even at State level... it would be easier to add clear "intentionality".And there's what parties need and what they want...So a fledging industry wants to be subsidize by new rights by new source of income?

Matt Schruers (CCIA):if some want to rationalize a rights approach, how do we harmonize with us law that with feist makes it clear there's no sweat of the brow? To have a treaty, we would have to go with a WIPO mandate that is not anti-constitutional. Regarding comments on harmony at the copyright level... if we have Limitations and Exceptions on copyright but not on signal then these limitations and exceptions would be useless. There's an inconsistency here. No protection for intermediaries, no parity here.

Gwen Hinze (EFF)refers to the letter. Wewe remain unconvinced aboutthe need for new rights-based approach. The US has a thriving broadcasting industry and there's no necessity for new economic rights to stimulate it.Regarding the scope of the treaty: it should be signal protection but the current draft goes far beyond that.it is about creating a new layer on top of copyright, layer that will restrict access to public domain and other materials. There will be an impact on consumers and other entities that rely on limitations and exceptions. If extended on the internet, the use of technological protection measures would restrict access to work and other lawful use. The internet and content is florishing and thriving without exclusive rights. reasons for threat: there's a difficult copyright regime, liability for isp and device makers and will stifle development of new technologies. We oppose extension of treaty on the internet. Parity is not an argument but need strong analysis.Thress points: technological protection measures will necessitare tech mandate.(see joint statement)And TPMs and post fixation rights would be totally new in US law. It would be control of program content and protection against signal theft. It would also be control of device.We also urged the US delegation again to check possible anti competitive behaviour. We support mandatory language for limitations and exceptions but there's a lot of uncertainty. the language should be mandatory.

James Love (CPTech): This is complexe because there is support for signal protection. But the proponents want economic rights. Except for broadcast of live sport event there is no piracy that cannot be dealt with copyright. Maybe we should focus on sport broadcast treaty where it is needed. regarding the discussion on tv and internet and parity. It is as if the internet has not enough respect because there are I remember comments by Ben regarding webcasters wanting to be included: watch out for what you wish for, that means regulations. No one understand what will broadcasting will be. The chair's draft is based on old treaty that was never adopted in the US. And it is inapproriate for the US PTO and the Copyright office to regulate the internet. It should go first in the US Congress. This is about Europe, they like Rome and database protection and it hurt their database industry, and our industry is doing well and we're doing it without regulations.The issue of public domain and creative commons have remained unnattended. What we have is based on UK law while with the risk of being coopted as supporters, we had submitted language for a narrow definition.

Jule: That will be for point 3 on the comments regarding the netcasting definition.

James Love: OK, so if you look at youtube and other, it is easy access to content, and flexibility on how it is used. It is important for commentaries on broadcast news, it is part of democracy...We see problems with excessive permission and it will be worst on the internet.

Ann Wright (Consumer Union) CU represents....and publishes Consumer Reports... we work on telecom issues affecting consumers and the rights based approach could have far reaching problems from consumers. There is cost and benefits to new IPR and its regulation.We share the concerns of the opponents of the treaty and support the narrow signal approach and question the need for the treaty.

Jule Sigal: Let's have reply comments by proponents [NOTE FROM MANON: WAS THIS EXTRA TIME FOR REPLY FROM THE PROPONENTS PLANNED? WHY DO THEY GET 2 TURNS?]

Ben Ivins: To the critics, please bring one example where companies or groups have been negatively affected by these rights. This is not new and it is not novel. Go back and read the cable act. regarding limitation and exceptions, I have to say there's arrogance here, which is why we're so loved arounf the world, these is this this is how we do this, it's the American way, it is the best. What about China or France? They would have interesting L&E on access to knowledge and information. And I disagree with Jim, for us compilation is protected.This is a signal theft but why can't we get same rights as Canadians or Mexicans ...Regarding L&E, virtually almost all would apply, like to school, libraries, intermediaries, and also for content owners. But I cannot say they would all applied but 95% would. applied.

Erika Redler: We want for limitations and exceptions the same approach you have in the WPPT. The rights go beyond US law. Why would US broadcasters not want to get the flow of dollars from Canada?I also have question regarding IP TV. And what does performance rights have to do with this?

Seth GreensteinRegarding L&E, we have great sympathy but there's a problem. What would it mean for the other treaty that have "parties may" if this treaty has "shall'? We want unity. The real issue is theft and retrasnmission without authorization across borders.Regarding retransmission, it is not in our interest to have liablity.And fixation for personal use is not an issue for us. It is in the law since 61.And regarding TPMs, from our perspective, we want free retransmission within the home.

Neil [...]

Fritz: All rights proposed here are already in large portion of the globe, UK included, and despite all of this not, one example in the interest of people in this room.

David Ferris Us Corp. We're proponent. Kevin mentioned TPMs. There are the same as in WCT and WPPT. Gwen and Jamie refered YouTube. But that is not covered by the definition proposed by the us.

Jamie: Netcasting has to be narrowed. Put conditions on scheduling....and here are the 6 points that we proposed in July. it is possible to have narrow definition.

You can 1) limit webcasting to only scheduled streaming of audio and video feeds, and specificially exclude text, images and data that could be viewed separately from the video feed.2) exclude from protection any streaming of audio and video feeds of public domain materials, or for which the webcaster does not have evidence establishing the copyright owner wishes to restrict access.3)exclude from the protection any streaming of meetings or events the primary purpose or effect of which is to promote transparency of government or non-government entitites.4) put conditions on scheduling, to include evidence that (a) the scheduling is independently promoted, (b) that a signficant amount of the traffic is from the scheduled stream, (c) that the material would not otherwise be available from the site except for the scheduled streaming, and (d) the material is commerically valuable, costly to stream, and would not and or is not available to the public from other sources, without measures to commerically exploit the works.5. the method of obtaining access to the streamed work is itself restrictive, in the sense that it requires remunerative subscriptions,6. The technologies used to stream the works do not undermine any of the public's rights under copyright, such as fair use or other non-remunerative uses permited under copyright.

Not one of these limits are in the definition proposal.

[...] [Manon: We had to leave to catch a plane for an A2K Conference in Alexandria Egypt. These are summary of notes sent by a colleague.]

one industry rep (?) made a statement. he concluded by expressing confusion over the last statement of the recent PTO draft of definitions - which according to US delegation incorporated everyone's, including CPTECH comments.

Jule: the language was from Jim Burger.

Jim Burger: clarified that the last sentence referred to industry's position on netcasting - should the treaty include webcasting.

Marilyn Cade: suggested a meeting in Geneva.

Jule: suggested that you all organize a meeting - they would help arrange for a place - and they would try to be there.

Question about next steps

Jule: next step was to 'show up at the meeting and see what happens.' Now that is enlightened.

The undersigned represent a broad and diverse group, united in a common belief that the WIPO Treaty on the Protection of Broadcasts and Broadcasting Organizations, as currently drafted, would harm important economic and public policy interests. This Statement offers comments on several key aspects of the treaty.

No justification for treaty. We remain unconvinced that a treaty is necessary at all. We note with concern that treaty proponents have not clearly identified the particular problems that the treaty would ostensibly solve, and we question whether there are in fact significant problems that are not addressed adequately under existing law. Further, we are concerned that the current treaty approach differs radically from U.S. legal traditions, and, if implemented, would require substantial and unnecessary changes to current U.S. law.

Scope. If the treaty moves forward in any form, we believe that the current rights-based approach of the treaty must be abandoned. Creating broad new intellectual property rights in order to protect broadcast signals is misguided and unnecessary, and risks serious unintended negative consequences. We recommend instead a signal protection-oriented approach, ideally focusing narrowly and specifically on protecting signals from intentional misappropriation or theft. We note that most of the concerns expressed in this Statement would be rendered moot by a treaty and associated implementing legislation that narrowly addressed signal theft.

Limitations and exceptions. To the degree that the treaty leaves room for implementing states to create broader rights or protections beyond protection against intentional signal theft, then we believe that a mandatory set of limitations and exceptions must be included in the treaty in order to ensure that uses of broadcast content that are lawful under copyright law are not inhibited by the treaty. At a minimum, limitations and exceptions under the treaty should be equivalent to those that an implementing state provides under its copyright laws, and should provide flexibility for additional limitations and exceptions that are appropriate in a digital network environment.

Home and personal networking. Under the current draft of the treaty, the broad scope of the proposed rights, combined with proposed additional rights regarding technological protection measures (TPMs) in connection with these rights, raises questions about whether “casters” would gain the ability to control signals in the home or personal network environment. Such control is without precedent and would interfere with the rollout of broadband and home and personal networking services and limit the development of innovative devices that provide home and personal networking functionality. Accordingly, the treaty should include a provision excluding coverage of fixations, transmissions or retransmissions across a home or personal network. Further, we should note that many of our group believe that TPM provisions are inappropriate in connection with this treaty and should be excluded from the treaty entirely.

Intermediary liability. We have serious concerns that network intermediaries would face the threat of direct or secondary liability for infringement of the broad rights granted under the current treaty draft. The exceptions from liability afforded under the current text of the treaty only apply to broadcasters, not to intermediaries. Further, the limitations of liability afforded to intermediaries today under existing national laws would only protect against copyright infringement, not against a violation of these broad new rights. We believe that the treaty should ensure that network intermediaries do not face liability for alleged infringement of rights or violations of prohibitions by virtue of actions they take in their normal course of business or by actions of their customers.

Computer networks. The current treaty draft includes protection for Internet simulcasts made by traditional broadcasters an cablecasters, but otherwise excludes computer networks from its scope. While members of our group do not share a common view about the best approach to addressing Internet-related issues, we are united in our belief that the current approach is unacceptable. Further, to the extent that the treaty continues to take a rights-based approach rather than a signal-theft-based approach, we oppose the treaty’s application to the Internet.

Please note that issues identified in this Statement do not represent a comprehensive list of the concerns of all members of our group. Individual group members intend to independently raise other issues of serious concern, and to further discuss the issues identified here.

Saturday, September 02, 2006

How restrictive is the USPTO/LOC proposed definition for "netcasting"?

I created a schedule of "netcasts." I believe this site qualifies under the USPTO/LOC proposed definition of netcasting (a)(1):

(a) “netcasting” means the transmission by wire or wireless means over a computer network, such as through Internet protocol or any successor protocol, for simultaneous or near-simultaneous reception by members of the public, at a time determined solely by the netcasting organization, of sounds or of images or of images and sounds or of the representation thereof,

(1) that are of a program or programs consisting of pre-recorded, scheduled audio, visual or audiovisual content of the type that can be carried by the program-carrying signal of a broadcast or cablecast; or . . .

Agreed statement concerning these definitions: The scope of the definition of “netcasting” is intended to be limited to transmissions over computer networks carrying programs consisting of audio, visual or audio-visual content or representations thereof which are of the type that can be, but are not necessarily, carried by the program carrying signal of a broadcast or cablecast, and which are delivered to the public in a format similar to broadcasting or cablecasting. By its terms, “netcasting” does not include merely providing access to audio or video content that is not pre-recorded for purposes of transmission via broadcast, cablecast or netcast.

The netcasting definition is not particularly restritive. It would seem that sites like http://www.clipaday.com/ would also qualify, and more generally, anyone who wanted to create an automated "schedule" for content would also qualify to acquire rights under the proposed treaty.

Basically, producted content would include any "audio, visual or audiovisual content of the type that can be carried by the program-carrying signal of a broadcast or cablecast," that is somehow "scheduled," which is something less than "merely providing access." The distinction between scheduling and "merely providing access" will be fairly minor if the "netcasters" receive parity with broadcasters, and if the broadcaster's treaty provides for rights of fixation, retransmission, etc, as is the case in the current draft by Jukka Liedes. Consider, for example, the following rights in July 31, 2006 proposal SCCR/15/2.

Article 9 - Right of RetransmissionArticle 10 - Right of Communication to the PublicArticle 11 - Right of FixationArticle 12 - Right of Reproduction Article 13 - Right of DistributionArticle 14 - Right of Transmission Following FixationArticle 15 - Right of Making Available of Fixed Broadcasts

Once a "netcast" is scheduled, and the netcaster makes a fixation, it can be re-distributed in the normal download on demand way that is the same as "merely providing access."

The US negotiators present their "netcasting" defintition in a document that also endorses a different approach to the treaty, one that focuses on "signal privacy" rather than economic rights (a position we applaud). But the US PTO/LOC also says "the protection for netcasting should be the same as that provided for traditional broadcasters and cablecasters." This is the problem. At least 83 countries have already signed the Rome Convention, so some type of Rome or Rome+ rights such as those proposed in the July 31, 2006 treaty draft are likely to be demanded by broadcasters. It is just not very realistic that a new broadcast treaty will provide for fewer economic rights than the Rome, and Rome+ rights are probably more realistic. Thus, the USPTO should either abandon its position in favor of parity between broadcasters and netcasters, or oppose any extension of the treaty to the Internet.

Of course, none of this is necessary. There is no big problem of signal theft for broadcasting, cable TV or the Internet that cannot be addressed under existing laws, including copyright. Countries like the US that never implemented Rome type "broadcaster rights" have very succcessful and profitable broadcasting industries.

And it is doubly absurd to think we are creating this new regime at the very same time the costs of publishing are falling and it is becoming so much easier to distribute audio visual content. This whole exercise is a treaty searching for a rationale.